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ELRCPartially AllowedRespondent's Notice of Motion dated 2/7/2019· [2020] KEELRC 420 (KLR)

Joswa Kenyatta v Civicon Limited [2020] KEELRC 420 (KLR)

Employment and Labour Relations Court
8 October 2020
OMONESMUS N MAKAU
2,349 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court reopened hearings after a lawyer's missed date, confirming genuine mistakes—not deliberate delay—can undo default proceedings if a real defence exists.

What this practically means

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Executive summary

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The respondent (applicant) in an employment claim moved the court by Notice of Motion dated 2/7/2019 seeking stay of proceedings, setting aside of ex parte proceedings held on 18/06/2019, and an order that the main suit be heard afresh with the applicant allowed to defend unconditionally. Its advocate, Boniface Munyao Muumbi, deponed that the advocate previously handling the matter inadvertently failed to diarise the hearing date and left the firm, so the applicant learnt of the ex parte hearing only when served with a mention notice. The claimant opposed, arguing the applicant was duly served, was guilty of inordinate delay and serial late filing, had not filed a witness statement, and that the explanation was unverified hearsay; he proposed throw-away costs of Kshs. 30,000 if setting aside were granted. The court framed the main issue as whether sufficient cause had been established. Applying Shah v Mbogo, Wachira Karani and Parimal v Veena Bharti, the judge found the absence resulted from a genuine mistake of counsel rather than wilful neglect. Applying Patel v East Africa Cargo Handling Services and CMC Holdings v Nzioki, the court found the defence - which denied dismissal and pleaded that the contract lapsed by effluxion of time - raised triable issues. Holding the claimant's prejudice remediable by costs, the court allowed the application: the ex parte proceedings of 18.6.2019 were set aside, the hearing reopened for the applicant to cross-examine the claimant and prosecute its defence, and thrown-away costs of Kshs. 15,000 awarded payable before the hearing date. Judgment delivered online on 8 October 2020 under Covid-19 directives.

Key legal issues

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01

Whether the applicant established sufficient cause for failure to attend the hearing

Holding

The failure to attend was due to a genuine error by the applicant's lawyer, not wilful neglect

Reasoning

Counsel with conduct of the matter failed to diarise the hearing date and left the firm; the diary annexed showed only two other cases scheduled for 18.6.2019. The court found the absence was inadvertence rather than deliberate delay, satisfying the sufficient-cause threshold drawn from Shah v Mbogo, Wachira Karani and Parimal v Veena Bharti.

p. 3
02

Whether the applicant's defence raises triable issues

Holding

The defence is not frivolous but raises triable issues

Reasoning

The filed memorandum of response denied that the claimant was dismissed, averring the contract lapsed automatically by effluxion of time. Applying Patel and CMC Holdings, the court found the defence raises a prima facie issue fit for trial, satisfying the second threshold for setting aside ex parte proceedings.

p. 3
03

Whether the claimant's prejudice can be remedied by costs

Holding

Yes; the claimant's prejudice is compensable by an award of thrown-away costs

Reasoning

The claimant had closed his case and filed submissions, so reopening the hearing causes prejudice. However, the claimant himself proposed that an award of costs would appease him, and the court held the prejudice is capable of remedy by costs, awarding Kshs. 15,000 as thrown-away costs payable before the reopened hearing.

p. 3

Legal principles established

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  • The discretion to set aside ex parte proceedings is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist a party who deliberately sought to obstruct or delay the course of justice
  • Before setting aside ex parte judgment or proceedings, the court must consider whether the applicant has a reasonable defence raising triable issues
  • A defence on the merits means a triable issue, not a defence that must succeed
  • Sufficient cause is a question of fact depending on the special circumstances of each case

Court orders

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  1. 1.The ex-parte proceedings of 18.6.2019 are set aside to the extent that the hearing is reopened and the applicant is allowed to cross examine the claimant and prosecute its defence
  2. 2.The applicant is condemned to pay the claimant thrown-away costs of Kshs. 15,000 before the hearing date

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 10 Rule 11
  • ELRC Procedure RulesRule 28(3)

Cases cited (8)

  • Mbogo and another -vs- Shah
    [1968] 1 EA 93
  • Shah v Mbogo and Another
    [1967] EA 116
  • Patel v East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • CMC Holdings Limited -vs- James Mumo Nzioki
    [2004] eKLR
  • Crystal Motors (K) Ltd vs. Occidental Insurance Company Limited
    (2007) eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2016] eKLR
  • Parimal vs Veena Bharti
    Civil Appeal 1467 of 2011, (2011)
Jurisdiction invoked
Inherent discretion to set aside ex parte proceedings under Order 10 Rule 11 of the Civil Procedure Rules 2010, applied in ELRC proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joswa Kenyatta v Civicon Limited [2020] KEELRC 420 (KLR)", Case Analysis (2020). Respondent's Notice of Motion dated 2/7/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/420/eng@2020-10-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.